Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Resolved, 
That the programme order of 4th December in relation to the Criminal Justice Bill be amended as follows— 
 In paragraph 2 of the order, for ''27 February'' there is substituted ''4th March''.—[Mr. Heppell.]

John Heppell: I beg to move,
That the Order of the Committee [17 December] be further amended as follows— 
 (1) in paragraph (6), by leaving out '4.55 pm on Tuesday 4th' and inserting '5. 15 pm on Thursday 6th'; and 
 (2) by leaving out paragraph (7) and inserting— 
 (7A) the proceedings on Clause 204, Schedule 11, Clauses 205 to 209, Schedules 12 and 13, Clause 210, Schedule 14, Clauses 211 to 216 (so far as not previously concluded) shall be brought to a conclusion at 11.25 am on Tuesday 11th February 2003; 
 (7B) the proceedings on Clauses 217 to 219, Schedule 15, Clauses 220 to 242, Schedule 16, Clause 243, Schedule 17, Clause 244, Schedules 18 and 19, Clauses 245 to 248, Schedule 20, Clauses 249 to 251, Schedule 21, Clauses 252 to 257 (so far as not previously concluded) shall be brought to a conclusion at 11.25 am on Thursday 13th February 2003; 
 (7C) the proceedings on Clause 258, Schedule 22, Clauses 259 to 261, Schedule 23 and Clauses 262 to 264, Clause 35 and Schedule 3 (so far as not previously concluded) shall be brought to a conclusion at 11.25 am on Tuesday 25th February 2003; 
 (7D) the proceedings on Clauses 49 to 61, Clauses 265 and 266, Schedule 25, Clause 267, Schedule 26, Clause 268, Schedule 24 and Clauses 269 to 273 (so far as not previously concluded) shall be brought to a conclusion at 11.25 am on Thursday 27th February 2003.
 The amendment is made in response to requests by members of the Committee to ensure that adequate time is available for the items being discussed today, and recognising that some future programming allocated too much time. We have tried to rejig the programme, and I think the amendment has the support of all parties. This is in line with what we discussed through the usual channels.

Dominic Grieve: I thank the hon. Gentleman. The flexibility that has been shown in this Committee is a model of its kind.
 Question put and agreed to.

Clause 137 - General limit on magistrates' court's

Amendment moved [this day]: No. 614, in 
clause 137, page 77, line 40, at end insert— 
 '(9) A magistrates' court, if satisfied that failure to pay a fine or part thereof is due to wilful refusal or culpable neglect, may pass a custodial sentence of up to 12 months on a fine defaulter.'.—[Mr. Malins.]

Humfrey Malins: The amendment is about fine defaulters. One might imagine that when a
 court imposes a fine, there is a realistic prospect of its being recovered from the person on whom is levied. However, the answer to a parliamentary question that I tabled shortly before Christmas gives a much clearer picture. In 2001–02, the magistrates courts in the Greater London area imposed fines of about £77.64 million. I wondered how much of that was recovered. There is a procedure whereby fines can either be written off—that is, the court takes the view in colloquial language that it is a dead loss—or they are remitted, which is another coded way of writing them off: again, the magistrates think that it is a dead loss. Of the £77 million of fines imposed in 2001–02, just over £42 million was written off by one of those methods.
 That means that if one is fined before the courts in London, one has, in effect, a 60 per cent. chance of never having to pay the fine. Where are the courts' powers? They have changed a little over the years as a result of over-regulation and of directives to the court in relation to the treatment of fine defaulters. There was a time when it was relatively straightforward. A magistrate, if satisfied that the person was not paying through wilful refusal or culpable neglect, could impose a custodial sentence forthwith—and did. It was usually a short one. Fines are imposed for all sorts of reasons. One of the heavier ones is for having no insurance on a motor car. The fine is often four or five times the value of the car, and can be unrealistic, particularly for those of small means. However, those who sit in London have learned over the years to be very sceptical about defendants' expressions of inability to pay a fine. 
 We now have a difficult procedure. Let me take the Committee back to meet a former metropolitan stipendiary magistrate of my acquaintance. With a means list—that is to say, fine defaulters—in his court, and 30 people were waiting outside to find out what happens about paying their fines, he called the first one in. After three or four minutes, he said, ''This is stuff and nonsense: seven days—take him down.'' He did the same with the second. By that time, word had got round outside, and he said, ''I shall now adjourn for 20 minutes because a number of people might want to make phone calls.'' And they did. Generally, everybody had paid their fines by 4 o'clock that afternoon. It was a broad-brush approach. 
 Today's procedures are very different. Now, when somebody is fined, say, £300 for an insurance offence, and does not pay, he is summoned in on a means inquiry. What then happens? The court is obliged to go through a very complex procedure in order to try to enforce the fine. There are various boxes to be ticked, each after a thorough investigation by the court, well before any consideration of a more draconian sentence. 
 The first question is whether to apply an attachment of earnings order. That is rarely relevant, in that many people come before the court and say that they are out of work. Such people often find their mobile phones ringing in their pockets—giving rise to even more scepticism on the bench. Goodbye to an attachment of earnings order. What about a deduction of benefit, if somebody admits to being on benefit? First, the 
 maximum that can be deducted is £2.60 a week, and secondly, the procedures involved are so absurd as to beggar belief. The third option is to send in the bailiffs on a distress warrant. That very rarely has any practical use at all. On being given ample warning of a visit by the bailiffs, people ensure that any items of value that they have are nowhere near the property. 
 How about sending the case to the county court and issuing proceedings for a judgment? That is a problem, too. The magistrates court has to pay the fees of the county court in relation to any summonses. What about a money payments supervision order? If anybody on the Committee has the slightest idea what a money payments supervision order is, I should be grateful to hear about it. In truth, that means that the court shuffles the problem over to the probation service, which then writes a letter to the defendant saying, ''By the way, there's a money payments supervision order. We'd like to supervise your payments to the court. What are your plans?'' Answer came there none. 
 What about the under 21-year-old? There is the draconian step of issuing an attendance centre order, requiring him or her to attend at an attendance centre for specified hours. The experience of magistrates who have imposed such orders is that, far from being a draconian punishment, they entail the young person merely attending at the centre, playing chess, draughts or computer games for an hour and a half, and then going home without any money having come from him or her. 
 On the procedure, when there is a list of 30 defaulters in front of one, each one can take 15, 20 or 30 minutes to go through. No wonder the courts are tearing their hair out about the prospects of recovering any money. In the old days—some would say the good old days—the magistrate would properly say, ''I don't believe that you've got no money on you. I'll have you searched. Take him down. Search him.'' That is out of fashion now, because article 6 of the European convention on human rights discourages such an approach. Something that was quite often effective some years ago has gone. 
 What about the prospect of saying, ''I don't believe a word you're saying. This is due to culpable neglect or wilful refusal. I happen to know that, because you've told me that you smoke 20 cigarettes a day, which is £28 a week,''—unless one is on the Council of Europe, in which case they are much cheaper. The magistrate might continue, ''How much do you drink a day?'' The reply might be, ''I have a couple of pints most nights.'' ''Fine,'' the magistrate might say, ''that's another £28. That's £56 a week. How much of that are you going to put in towards the fine?'' The answer could be, ''Well, it's hard to say. I've got a lot of outgoings. Why should I pay?'' That is happening to the courts. 
 The position has got worse. Back in 1999, in the inner London magistrates court area—a slightly different area, admittedly—£54 million was imposed by way of fines, and between only £13 million and £14 million was written off or remitted, which is not bad. Even in 2000–01, the position was again not too 
 bad, although matters get worse year by year. I shall be interested to see the figures for 2002–03, because the rate of unrecovered fines is rising by a number of percentage points a year.

Graham Allen: Is one way around this either for the court to benefit from collection or for it to suffer a penalty if it does not collect its fines?

Humfrey Malins: Yes, I take the point, but it would be unfair for the court to suffer a reduction in funding for not being able to recover its own fines when it does not have the weapons. That is my point. The court today does not have the weapons to act efficiently. If 60 per cent. of fines in the last year for which figures are available are uncollected, what will the position be in a couple of years' time? Is the system not utterly in disrepute? That is the background to the amendment. Although not very well drafted, proposed new subsection (9) focuses on the problem.
 The Government should first accept that there is a major problem. That must be true if courts are saying goodbye to 60 per cent. of fines. Secondly, do the Government think that the trend towards non-recovery will continue? Thirdly, do they accept my proposition that the laborious methods that must be gone through in the court are utterly censurable? Fourthly, what will they do about that? I can tell the Minister that the current law is that if culpable neglect or wilful refusal is found, a custodial sentence can be imposed. However, to find that that is the case tests the spirit and forbearance of any bench, because of the length of time that it takes and the procedural obstacles that are put in the way. A conclusion that could be reached frightfully quickly can be reached only after immense wastage of time and money.

Mark Francois: My hon. Friend is making a powerful point. May I reinforce it by saying that the people in Essex who are responsible for the collection of fines have expressed genuine concern that the system is in danger of falling into disrepute, because many people know how difficult it is to compel them to pay their fines? The people who have to collect them are worried that as that becomes even more widely known, the fines will no longer be a deterrent.

Humfrey Malins: My hon. Friend is right to point out the problems in his own area.
 Does the Minister believe that any of the problems that we face in collecting fines are linked in any way with the Human Rights Act principles in relation to a fair trial? To what extent could that jurisprudence expand over the next few years to make the situation even worse? It is still possible—although it takes a genius to arrive at this conclusion—to conclude that culpable neglect and wilful refusal apply in a case, and some fine defaulters are imprisoned. In 2001, 42 were imprisoned with short sentences—42 fine defaulters, covering approximately £42 million. I suggest, given that each was not fined £1 million, that the proportion of fine defaulters imprisoned was minuscule. Many say that we should not imprison fine defaulters; it is a waste of time. I challenge them to come up with a 
 better idea that will ensure that in future years, when we impose £77 million of fines in court we do not write off such a huge percentage as to make the whole system lacking in repute.

Simon Hughes: The hon. Gentleman makes an important set of points on an important issue. I should like to add a few brief comments. The first is that I would hold back from supporting the amendment because I am one of those who believe—on a different scale, it is like the war in Iraq—that we should look at all other remedies first before we go down that road.
 Although there is a serious problem, it will be sad and unhelpful if we have to have recourse to the heaviest stick of all: imprisonment. There is not a difference of view about that. The hon. Gentleman says that in many cases it does not work. My preference in such cases would be to look first to community penalties. That would ensure that the people did not spend their evenings and weekends drinking, smoking and spending money, flagrantly in breach of their obligation to society through the court order, but neither would we prevent them from earning money. One of the problems of locking people up is that they are then not in a position to earn. An obvious criticism of imprisoning fine defaulters is that it makes it less easy for them to collect the money to pay off the fines and fulfil their obligations to the state, their families and other dependants. 
 However, the system is in disrepute. The use of fines has reduced, partly because enforcement is seen as a problem. We need to do things that will remedy that. I offer a practical suggestion that might help in part, from experience both before and in my current job. I am always mystified that people can live one life for the purposes of the Inland Revenue and another for the purposes of the Benefits Agency. I have been in many a court in which the explanation of the financial circumstances of the individual is accepted only because there is no one present to challenge it and show that that is not the financial history of that person.

Dominic Grieve: The hon. Gentleman may recollect that earlier I highlighted the difference that sometimes appears between the legal aid application form and the evidence given in court about a person's means.

Simon Hughes: It is exactly the same issue—it is about linking up. It is like a child's join-the-dots book. We are failing to link the dots to form the picture; the court never sees the whole picture. I know that we may cover these issues on clauses 146 to 149, but I want to ask the Minister two things. First, what do the Government have in the pipeline to increase the use of fines and their collection? Secondly, could the data protection rules not be used to entitle the state or the prosecuting authorities to collect information on the earnings and spending patterns of somebody who has been accused, whether of a serious or an either way offence? The rules prevent the transfer of Revenue data to the social security system and vice versa, but they could be used to cover the legal aid application.
 Of course, even that would not give a complete picture. There are many in the Minister's constituency and in mine who work in the ''informal economy''—I think that that is the politically correct term. Many of them seem to do pretty well. One is never quite sure what they are doing, but they appear to survive and be able to pay their rent or mortgage. We cannot provide all the answers, but we should be able to do much better. It is sensible that there are proposals to order statements of offenders' financial circumstances. A criminal record may not be perfect, but it is available and it comes off the system. A financial record should come off the system in the same way, so that if somebody is charged with another offence their record is available in easy-to-read form. It will record what they said their position was last time, what the court found their position to be last time, and all the material documents that were brought before the court. Somebody can then be asked why they had no vehicle in 2001 but have a very nice vehicle in 2003. 
 I understand the motivation of the hon. Member for Woking (Mr. Malins). He is right to say that we are not succeeding in that area of the law. However, I hope that there are other ways in which we can proceed.

Mark Francois: May I make a suggestion? Some months ago, I visited Southend magistrates court. Co-located there is the collection centre for tracing all outstanding fines across the county of Essex. The county has a population of 1.5 million, so it is no small job.

Simon Hughes: Particularly in Essex.

Mark Francois: Steady.
 Many of those who do not pay their fines are very streetwise: they understand how the fine system works or does not work. They also understand the pressures that the collection system is under, and they know that the prisons are pretty full. There is still the ultimate deterrent of imprisonment for those who do not pay their fines. However, I believe that it should be removed, because it is used extremely sparingly, and streetwise fine avoiders are well aware of it: they know that the chances of their being imprisoned for non-payment of fines are slim. 
 What can one do? It has been suggested by practitioners in the area that one could allow credit reference agencies to be informed that an individual has an outstanding fine, so that when that individual applied for credit in future, he could be confident that the agencies would know about his unpaid fine. Practitioners believe that that would act as a practicable deterrent, because such people often have lifestyles that involve constantly buying things, such as mobile phones, stereos or cars, for which they need credit. If people found it difficult to obtain credit because they had not paid a fine, that might have a deterrent effect without sending them to prison. I promised those practitioners that if I ever had the opportunity to put that suggestion to a Minister, I would, so I have kept my word. I do not expect the Minister to give me a definitive reply now, but I stress that the suggestion was made by practitioners, and I do not claim any originality for the idea.

David Heath: I am intrigued by that idea and support the hon. Gentleman's suggestion. It seems perverse that that principle applies in the civil courts, in the case of an unpaid county court judgment, but not in the criminal courts. There is one proviso, however, that the principle should not apply until an individual has had an opportunity to pay the fine, because an adverse credit reference should not be an automatic response to the imposition of a fine.

Mark Francois: That is a perfectly reasonable point, but equally there will be no deterrent value in such a provision if the period allowed for payment is too long. In fairness, people should be given an opportunity to pay, but if they have not paid reasonably promptly—we could debate how long the period should be—they should know that a credit reference agency would be likely to obtain that information from the authorities, making it difficult for them to obtain credit thereafter. Will the Minister consider that, and if he cannot give me a definitive response today, perhaps return to the matter later? The suggestion was made by practitioners, and I believe that it has merit.

Hilary Benn: This has been an interesting and important debate, although as I think the hon. Member for Woking would acknowledge, his proposal concerning the power to commit to custody needs to be considered alongside current powers. As he may be aware, the length of time for which offenders may be committed to custody for defaulting on payment of a fine is set out in schedule 4 of the Magistrates' Courts Act 1980. For an offender to be committed to prison for 12 months, he or she would have to have defaulted on a very large sum indeed, in excess of £10,000. We would not want to alter those rules by making it possible for magistrates to commit to custody for smaller amounts. I acknowledge the spirit of the proposal, however.
 As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) acknowledged, we shall discuss some provisions that would make available information about offenders' means. Of course there is a problem, as everyone recognises, and it has been getting worse for several years. The White Paper ''Justice for All'' estimates that only about 59 per cent. of fines are ever paid. That is a national picture, which is slightly different from the percentage mentioned by the hon. Member for Woking in relation to London. 
 This Bill is not the appropriate vehicle for dealing with the problem; the Courts Bill is. In that, hon. Members will find a range of proposals that attempt to deal with that serious problem, which has an impact on the willingness of courts to consider fines as a disposal option. We have seen fines decline as a share of the sentencing market over the past decade or so, which is not a good thing, so there are proposals in the Courts Bill to impose stronger obligations on the defendant to disclose his income and expenditure. 
 These ideas are to be piloted: discount for prompt payment, an increase in the fine for non-prompt payment and the appointment of fines officers to manage collection and enforcement. The hon. Member 
 for Rayleigh (Mr. Francois) made a very interesting suggestion along the lines that registering the fine with the registry of judgments would make it more difficult for defaulters to obtain credit. I hope that I have understood that correctly. Similarly, one could order the clamping of a vehicle, with the option that it could be sold if the fine were not paid. I took the point of the hon. Member for Woking about bailiffs, but that is not to say that greater use of bailiffs might not be effective in encouraging people to pay their fines. 
 The debate has been helpful. I undertake to draw to the attention of the Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper), who has responsibility in the area, the suggestions that have been made in the course of debating the amendment. I am sure that she will look at them with great interest.

Humfrey Malins: I rather like the sound of discount for prompt payment. It is almost like telling somebody that his fine is £10 now or £50 next week. The Minister has been helpful in saying that he will draw the issues raised in the debate to the attention of his colleague. That is kind of him. Although the amendment was badly drafted, it has prompted a debate on an issue of some importance. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

James Cran: I intend now to call amendment No. 648, because it was grouped this morning with amendment No. 501, which was not moved.

Simon Hughes: I beg to move amendment No. 648, in
clause 137, page 77, line 40, at end insert— 
 '(8) This section shall not come into force until the provisions in Chapter 3 of Part 12 of this Act relating to prison sentences of less than 12 months have come into effect.'.
 This is the second half of the debate that we had this morning about the relationship between the change in the powers of magistrates, enabling them to give sentences of up to 12 months, and the coming into effect of the new regime for prison sentences of less than 12 months under custody plus. 
 The original plan was that magistrates would get increased powers to imprison for up to 12 months at the same time as custody plus came into operation. The Halliday report is unusual in that it was written by one man, rather than a committee, so it was not compromised. It is a highly respected report, presenting the views of the former director of criminal justice policy at the Home Office, who clearly thought about the issues over a long time. The Government are changing the plan, so the Minister owes the Committee an explanation of why it cannot be delivered. 
 It is clear from the evidence that Lord Falconer gave to the Home Affairs Committee that he could not give an assurance that custody plus would be operational before the new sentencing powers come into effect. There was general acceptance in this morning's debate that the likelihood is that if 
 magistrates' powers are increased to double their current option to imprison, and at the same time they do not have to follow the new regime—three months in prison followed by a variety of non-custodial supervision mechanisms—they will be free to give four to 11-month sentences. The Minister confirmed that that would be an option until the new system came into effect. The hon. Member for Woking and I were clear, on the basis of advice and of the evidence that we had heard, that that would mean a significant rise in the prison population. That cannot be helpful when the Prison Service is having difficulty in coping. 
 In addition, there appears to be a problem with funding. The Chancellor and Home Office Ministers have made it clear that not all the money needed to bring custody plus into operation is in place. I am conscious of the fact that we have a three-year comprehensive spending review cycle and that we are in the first of those three financial years, although Treasury Ministers can always dive into the contingency fund if they want to. I am also conscious of the fact that the probation service is hugely overstretched and under-resourced, and it is not just the service that says so—that is the experience of those of us who have watched it work. The most acute example that I can give—I have given it before—is that there will sometimes not be a single probation officer available in the biggest court in the land, which is surely a sign of stress. That happened in the great county of Essex, but that is not why there were no probation officers. Other, smaller courts have been similarly affected. 
 We must have confidence in community sentencing and in the fact that the new regime will not simply increase sentences for those who go to prison. Most importantly, however, we must ensure that we do not have an interim regime with no custody plus—the good new idea, which involves some time inside and then supervision—for an indefinite period. We must avoid compounding the problems created by the bad old idea of prison with nothing after, which everyone has told us has not worked. We must link custody plus to the provisions giving greater power to magistrates. That is why the amendment would ensure that those provisions do not come into force until the custody plus system is in operation. 
 At some stage during the passage of the Bill, I hope that Ministers will return to the logic of their original position, and if necessary negotiate a package with the Chancellor. I am sure that such a package would be worth having and that it would increase the effectiveness of punishment and reduce the pressures on the prison system. It would certainly not disadvantage the courts or the criminal justice system.

Graham Allen: I could not move amendment No. 501 this morning, because of an engagement in Westminster Hall. I introduced a debate on the United Kingdom's declining wild bird population, which I know is a matter of great concern to members of the Committee.
 I want to support the hon. Member for Southwark, North and Bermondsey, although perhaps using fewer words. Amendment No. 501 would have limited 
 magistrates' powers to impose longer custodial sentences to areas where the custody plus regime was in force. I would be grateful if my hon. Friend the Minister could deal with the point now or drop me a line.

Hilary Benn: Let me respond first to the hon. Member for Southwark, North and Bermondsey, although our small exchange mirrors an earlier one, so I shall be as brief as possible. We are not diverging from the recommendations in the Halliday report but going beyond them, because the report did not cover the relationship between magistrates' sentencing powers and the new sentences. As Lord Falconer confirmed to the Select Committee, no final decisions have been made on when the sentencing reforms will be implemented, and we must reach a judgment about what will be appropriate when.
 The increase in magistrates' sentencing powers is, of course, closely tied in with the changes to the allocation of offences between courts, as set out earlier in the Bill. Both measures are intended to encourage magistrates courts to retain more cases, and we clearly want to introduce them at the same time. 
 The hon. Gentleman referred to the capacity of the probation service, and he is right. However, hon. Members should remember that the service is much better resourced than it was in 1997, and its funding has increased by about 50 per cent. It went through some dark and difficult days in the mid-1990s, and training stopped completely at one point. We should remember where the service came from, because we are now in a very different world. The issue is partly about resources and partly about the speed with which new people can be trained to implement custody plus and the service's other functions. The new resources will help in that respect, and further investment will be made as a result of the 2002 spending review. 
 An increase in the prison population will not be a natural consequence of the changes. There is no clear evidence that magistrates courts sentence more severely than the Crown court. As I said earlier, that is the comparison that we need to make when assessing the impact of the changes.

Simon Hughes: The Minister said that the Government had a plan for bringing custody plus into operation. What are the earliest and latest dates by which they will do so?
 Have the Government discussed with the Lord Chief Justice and others what guidance will be put in place if magistrates are given their new powers later this year or next year to sentence people—depending on what Parliament decides—for up to 51 weeks or 12 months? Will there be guidelines to make it clear that magistrates should generally not impose higher sentences than they did under the old powers? Will it be clear that the additional powers are intended to deal only with people who would have been passed to the higher court for sentencing under the old powers? In such cases, the courts do not believe that they have the relevant capacity, because a sentence of between six and 12 months is required, and that is what the higher court will decide. If that distinction is not made clear, there will be a danger that magistrates courts simply 
 forget what the range of sentences was before and see only the wider span. Suddenly, offences that incurred sentences of five or six months will incur sentences of nine, 10 or 11 months. 
 Are guidelines a prospect? Is the intention that people should not be sent to prison for longer for offences that previously received sentences of six months or less? The only people magistrates courts should contemplate sending to prison for more than six months are those who would have been sent to the Crown court and received sentences there of between six and 12 months. If the Minister could help us with that, it would be much appreciated.

Hilary Benn: On the first question, the Government are still considering the precise implementation dates for custody plus, and that is the most up-to-date answer that I can give. I have no doubt that the implementation of magistrates' new sentencing powers will be accompanied by guidance.
 Clearly, our objective is the one to which the hon. Gentleman referred at the end of his contribution, and the changes are not intended to lead to a great increase in tariffs. We are enabling magistrates to retain and pass sentence in more cases, rather than sending them to the Crown court. I am sure that magistrates will be mindful that the purpose is not to increase the length of sentences but to allow for appropriate sentences. Those will reflect the new range of seriousness that magistrates can consider once their sentencing powers are increased.

Simon Hughes: The Committee will have heard what the Minister said. We are not persuaded yet, and I am sure that we will return to the matter. I hope that, by the time the Bill is enacted, Parliament will take the view that custody plus and the increased sentencing powers should be linked. However, I appreciate that we will not win the argument or a vote today. I shall return to the matter, but for now I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 137 ordered to stand part of the Bill. 
 Clause 138 ordered to stand part of the Bill.

Clause 139 - Power to increase limits

David Cameron: I beg to move amendment No. 707, in
clause 139, page 78, line 11, after 'and', insert 
 'subject to the restrictions on the Court of Appeal's ability to reduce sentences set out in section (Limits on the reduction of custodial sentences by the Court of Appeal)'.

James Cran: With this it will be convenient to discuss new clause 12—Limits on the reduction of custodial sentences by the Court of Appeal—
 'Where— 
 (a) a custodial sentence of four years or less has been passed in a Crown court or a magistrates court; and 
 (b) where that sentence is appealed against to the Court of Appeal; and 
 (c) the Court of Appeal determines that the sentence should be reduced, 
 the maximum reduction that may be made by the Court of Appeal is 10 per cent. of the original sentence.'.

David Cameron: I support the clause. I am a great believer in the lay magistracy—it does a good job—and I am in favour of the Government increasing its sentencing powers. New clause 12 is the first of three new clauses that I have tabled, but it may not be obvious why I believe it to be necessary. I shall try to explain why.
 The proposal may result in howls of anguish from those at the top of the judiciary, but it could cause some delight in the Crown courts and magistrates courts. The new clause would limit the Court of Appeal's power to reduce short sentences dramatically. It applies to sentences of four years or less, and the Court of Appeal would be able to reduce them by only a small amount—I suggest 10 per cent. 
 There are two logical positions to take on sentencing policy. First, one can take the view that Parliament should set maximums for each offence, that the courts should have freedom within those maximums to set appropriate sentences and that the Court of Appeal should allow some leeway for local decisions and local justice. Secondly, one could suggest that Parliament sets maximums for each offence and that detailed guidance should be published about the appropriate sentence for particular cases. Those publishing that guidance should be accountable to Parliament, so that the decisions can be debated. 
 We are in neither situation. There is an awful lot of guidance about what sentences should be set by the courts, but it is not understood by the public, and those giving it are not accountable to Parliament. In many cases, sentences of four years or less are radically cut by the Court of Appeal. I am sure that many hon. Members have received letters from constituents who do not understand why sentences are reduced so radically. The situation is made worse because people do not understand why those sentenced to two years' imprisonment often serve only one year, and sometimes even less. I shall give an example from my constituency. 
 Mrs. Smith lives in Church road in Long Hanborough. On 1 December 2001, her husband was killed on the A40 near Cassington in my constituency while driving his car. The driver of the car that caused the death was unlicensed and uninsured. He was accompanied by his 19-year-old brother; he, too, was uninsured, and being only 19, was not old enough to accompany a learner driver. They had fallen asleep at the wheel. At Oxford Crown court, they were found guilty of causing death by dangerous driving, and were given three years and nine months. I have written to the Minister about the case. 
 The brothers appealed, and the Court of Appeal cut their sentence in half to two years—a radical cut. Because people sentenced to two years' imprisonment serve only half the sentence, they are automatically released after one year. However, the early release provisions introduced by the Government mean that 
 they are likely to be released after only nine months. Mrs. Smith thought that her husband's killers had been sentenced to three years and nine months, but she eventually found out that they would serve only nine months.

James Clappison: My hon. Friend will no doubt agree that motoring offences can be difficult. Cases such as the one that he describes, showing extreme recklessness and a reluctance or refusal to follow required procedures, are the very cases that the public regard as being so wrong. Those involved in sentencing should give attention to such cases, because people feel that many offenders do not receive the sentences that they deserve.

David Cameron: That is precisely the point that I am making. Mrs. Smith and her family have suffered a double disappointment. Disappointment No. 1 was the cut in the sentence made by the Court of Appeal. Disappointment No. 2 was finding out that the new sentence of two years meant that the brothers would serve only nine months. Long Hanborough is a small village in my constituency, and people there have gathered more than 700 signatures on a petition. There was real anger locally when people found out about those disappointments. There are two ways to try to deal with that.
 New clause 10, which I shall not speak to now, because I hope that it will be discussed later, would solve the second of the problems—that of sentences amounting to only half of what was pronounced. It states that people should serve the sentence that they are given, less 10 per cent. for good behaviour, to keep order in the court. If by some miracle the Government accept that, half of the disappointment will be resolved. Perhaps, if the Sentencing Guidelines Council—which I hope we shall improve with amendments—really works, and we get the sentences for the relevant offences right first time, there will be less need for the Court of Appeal to cut sentences, as in the case that I cited. 
 I still have a real problem about this matter, however, because I believe that, to some extent, justice should be local. On occasion, a sentencer, be it the magistrate or a judge in the Crown court, will see a case that has caused real public concern and disquiet, and will pass a tough sentence. I was discussing the issue outside this Room with my hon. Friend the Member for Woking, who has huge relevant experience. Sometimes a sentencer will know what has happened, for example with respect to a local drug dealer who has caused havoc in a community, and will pass a slightly stiffer sentence than usual. The sentencer might decide to make an example of someone who has committed a hideous street crime, in which a much-loved elderly resident was knocked over and robbed. That has happened. Home Office research has been done on whether that can be a deterrent. 
 Are tougher sentences of that kind sometimes right? My answer is a wholehearted yes, because they can work in the interest of public confidence in the criminal justice system and deterrence. I do not believe that in every case the same sentence should 
 be passed for the same crime everywhere in the country. No two crimes are precisely the same.

Simon Hughes: I do not want to undermine the hon. Gentleman's argument. I wonder whether he is aware of one of the strong reasons for the current battle in many counties of England and Wales to keep magistrates courts and Crown courts open locally. In the old days, the assize judge would go to a small town such as Brecon, as I remember from my youth, to deal with cases. That was effective, because the message went out locally and the sentence was known locally.

David Cameron: Absolutely. Many hon. Members who represent rural constituencies have a real battle to keep magistrates courts open. What the hon. Gentleman described is very important. It is not just a question of the trial happening in the middle of Witney; it is also in the Witney and West Oxfordshire Gazette, the Oxford Mail and The Oxford Times, and people know what sentence is given. The reason for variation between sentences is not only that no two crimes are exactly the same, but that no two sets of circumstances in which crimes are committed are exactly the same.
 Those who argue in favour of the Court of Appeal and against my new clause will say that the strength of a system in which the Court of Appeal can reduce sentences lies in the court's ability to study sentences in the cold light of day, free from the emotion of the earlier trial; it can ensure that the sentence is fair and appropriate. My response would be that that is fine for the rights of the defendant—the criminal. However, it is not so fine for the victim, or for the community in which the victim lives. They face a double disappointment of knowing that the sentence has been cut, and that the offender will be released quickly.

David Heath: Again, I do not want to undermine the hon. Gentleman's case. However, there is one aspect of what he says that surprises me. He opened his contribution by saying that he fully supports the clause. Does he not agree that, whatever the merits of being able to increase magistrates' sentencing powers, Parliament has some locus in that, and that it should not simply happen through the order of the Secretary of State? I think that that is what bothers many of us about the clause.

David Cameron: I take the point. I am nervous about the Home Secretary having too much power to do things through orders. I was trying to say that I should certainly support the concept of greater sentencing powers for magistrates, but the hon. Gentleman is probably right: it should be brought about in primary legislation.
 I want to return to the argument about why we punish people, why the criminal justice system works as it does and why we send people to prison for causing death by dangerous driving. Yes, we do it as a deterrent, but also because we believe in punishment and in just deserts. 
 I have said before in Committee that, in a civilised society, we give up our right to take vengeance for wrongs that are done to us, and vest it in the state. Mrs. Smith and her family have given up their rights, so they expect the state to act properly. However, they 
 feel that the Court of Appeal has let them down badly. When we debate the details of Bills it is important to remember the effect that they have on people in our constituencies. We have all received letters like the one that I shall share with the Committee from Mr. Smith's sister-in-law. She writes: 
''My brother-in-law died in intensive care later that night from massive head injuries. He was on his way to work on a Saturday morning and was dead on the Saturday night. He left behind a loving wife and daughter, not to mention two brothers and a sister, all of whom are finding it very difficult to come to terms with, along with the rest of his family and friends.
At the trial the two brothers were sentenced to three years and nine months in prison each, which we all think for taking a life is nowhere near enough.
Now they have won an appeal and had their sentences halved. I would like to know how and why! We are all serving a life sentence without my brother-in-law. They will both be freed from prison soon to get on with their lives. Tell me, how fair is this and how would you feel if it was a member of your family?''
 Amendment No. 707 is about trusting local justice and ensuring that we restore confidence in the criminal justice system. That is, after all, what the Bill is meant to do. It is also about stopping victims of crime feeling cheated. I commend the amendment to the Committee.

Dominic Grieve: The clause raises several problems, and my hon. Friend seeks to widen our discussion to include the scope that the Court of Appeal has to reduce sentences passed by magistrates courts or Crown courts. That is an important topic, and one that I propose to deal with before I turn to the clause's more general issues. By doing so, I hope to avoid the need for a clause stand part debate thereafter.
 My hon. Friend raises an important issue. Nothing is more calculated to bring the course of justice into disrepute than the public's perception of a sentence that the court has passed. As he rightly said, a sentence that the victims or their relatives do not consider tough enough is often reduced by the Court of Appeal, which has taken into account the offender's background factors, such as his record and, often, his age. That applies especially in emotive cases, such as causing death by dangerous driving, for which the tariff of the sentence can be difficult to fix. 
 My hon. Friend makes a powerful case for limiting the Court of Appeal's ability to reduce sentences. His amendment would allow leeway for local justice and for a response to public opinion. I hope that he will forgive me when I say that the difficulty with his amendment—although I am sure that he will acknowledge it—is that it is impossible to disentangle limiting the Court of Appeal's ability to reduce sentences from having to dealing with barmy judges. 
 The amendment would not only have the desirable result of preventing the Court of Appeal from reducing sentences of less than four years by more than 10 per cent.—it would also fetter the Court of Appeal's ability to interfere if a judge passed a totally unreasonable sentence. I am the first to acknowledge that I suspect that the problem that my hon. Friend identified is a much more frequent one than that of the 
 judge who passes the completely unreasonable and deranged sentence. However, I regret to have to tell him that during my time as a barrister there were unfortunate occasions on which judges did just that.

David Cameron: Does my hon. Friend know how difficult it is to get the evidential base? I asked the House of Commons Library for the number of cases in which the Court of Appeal reduced the sentence when it was under four years, and I was told that that information is not currently published and collated, which I find strange. That information would be helpful in order to find out whether his point has merit.

Dominic Grieve: It would indeed. The absence of statistics on sentencing has been a persistent problem for as long as I can remember. Inevitably, one must rely wholly on anecdotes. There is a lot of media coverage—one has only to open one's newspaper on virtually any day of the week to read about cases in which people complain about what they think are excessively lenient sentences. That applies particularly to those extremely emotive cases that often involve death on the road. The public feel strongly that there should be a heavier punishment, and traditionally the courts have tended to make a lot of allowances for those who commit such offences. Over the past five or six years the tendency has been for the tariffs to rise. They are much higher today than they were, say, 15 years ago.
 However, the statistical base will not help us on the distinct problem. The amendment would inevitably mean that in a case in which the judge, for whatever reason, had simply got things completely wrong, the Court of Appeal's ability to interfere would be limited. I have a difficultly with that. Again, thinking back over anecdotes, I can think of a number of examples from my time at the Bar of occasions on which judges did just what I described—and their reputations went before them. I can think of a particular judge in Chelmsford. One used to have a good, shrewd idea that if one appeared in front of him representing a defendant, he would behave unreasonably during the trial and at the end pass a sentence that bore no relation to the offence. I think that that judge has mercifully retired from the Bench. I had many experiences of appearing in front of him in which I was left speechless at his manner of proceeding and the sentences that he sometimes passed. Mercifully, the Court of Appeal existed to rectify his grosser mistakes.

David Cameron: Will my hon. Friend reflect on the fact that the amendment deals only with sentences of four years or less? The maximum time that we are talking about as matters stand is two years in prison. How barmy can the judge be to get things badly wrong in such cases?

Dominic Grieve: I take the view that if, for example, somebody would have received a suspended sentence of imprisonment, as it then was, and ends up receiving three years immediate, despite being of previous good character, the effect on that individual will be severe, even though that is not the same as going to prison for 10 years. I suggest to my hon. Friend that a
 mechanism must be available to the Court of Appeal to deal with such cases. The presence of zealots—the judge I mentioned was undoubtedly a zealot in every sense and believed that he was purifying the world in which he moved—requires that the Court of Appeal inject a note of common sense into the sentences passed. I understand exactly what my hon. Friend's intentions are. If the Sentencing Guidelines Council works as intended, the sort of case that understandably caused his constituent to write—we have all received such letters, and felt great sympathy—should, I hope, be less frequent. There ought to be a way in which the judges can be properly directed to the guidelines before passing sentence, so that their margins of operation may be reduced.
 I shall be interested to hear the Minister's response, but we should place our confidence in requiring judges to follow guidelines rather than in fettering the Court of Appeal's ability to interfere with sentences. We need to preserve the Court of Appeal's ability to interfere in cases where, for whatever reason, judges have got the sentence not just slightly wrong but completely and utterly wrong. There will be enough of those cases in a year to cause real injustice. Even if there is only one case, real injustice will have been done, and there should be a mechanism for ensuring that it can be reviewed. 
 I turn to the generality of the clause, on the ability of the Secretary of State, by order, to alter the maximums of sentences that can be passed.

Simon Hughes: On a point of order, Mr. Cran. I seek your guidance. I understand that the hon. Gentleman is trying to save time, and I am happy to be governed by your ruling. I wonder whether you will be minded to have a clause stand part debate. I do not wish to comment on the amendment or the new clause, but I want to comment on the clause as a whole.

James Cran: In the light of that intervention, a clause stand part debate will be allowed.

Dominic Grieve: Mindful of that, Mr. Cran, I conclude my remarks on the amendment. I look forward to hearing from the Minister how the point raised by my hon. Friend the Member for Witney (Mr. Cameron) might properly be addressed.

James Clappison: I rise because I was so impressed by the remarks of my hon. Friend the Member for Witney. He made two particularly important points. My hon. Friend the Member for Beaconsfield (Mr. Grieve) is right that there must be a way of putting right cases that judges have manifestly got wrong.
 The Committee has sympathy with my hon. Friend the Member for Witney on the motoring case that he mentioned. I heard what my hon. Friend the Member for Beaconsfield said about motoring cases, and they are indeed sometimes difficult. None the less, such cases are regarded by our constituents as serious—with the most serious of consequences. That is especially so if the offence relates not only to the driving itself but to the recklessness of the person getting behind the steering wheel—for instance, someone who drives knowing that he has had too much to drink. The case cited by my hon. Friend the 
 Member for Witney was of someone driving without a driving licence and the other necessary formalities. Someone who does that and then drives badly is exhibiting extreme recklessness, but that is not always treated by the courts with the seriousness that it merits. 
 My hon. Friend the Member for Witney spoke about local justice, a valuable feature of our system, and called for the Court of Appeal to take account of the needs of local justice and the views of local people when sentencing. Sometimes, particular offences need heavier sentences than the generality. 
 Yesterday evening, I attended evening a meeting of the Hertsmere crime and disorder reduction group. A senior police officer presented a report that made my hair stand on end. He said that the extent of crack cocaine dealing and consumption in Borehamwood would come as a surprise to many. He went on to spell out the extent of the problem, and told us of the effects of dealing in crack cocaine and the techniques used by the peddlers to get people addicted to it. The effects on those people's lives, and the crime and antisocial behaviour problems suffered by the rest of the community, gave me pause for thought. I hope that when such people are brought to justice, they receive heavy sentences.

Hilary Benn: I would like to join in the interesting conversation between the three Conservative Members. I am sure that the point made by the hon. Member for Witney about the frustration felt by victims and their families when they observe how the criminal system works is well made. A case occurred in my constituency involving a woman who lost her daughter. The charge was driving without due care and attention, for which a custodial penalty is not available. She felt deeply and bitterly resentful of the fact that the man who killed two people when he lost control of his vehicle received, I think, a 12-month ban and a fine of £200. As she put it, publicly, that was £100 for each life lost.
 The honest approach is to consider how each of us would feel in those circumstances. Victims' views range from a desire for vengeance, which is the word that the hon. Member for Witney used, to the desire to offer forgiveness. We have seen the full spectrum. A recent case was the murder of the police officer in Manchester, whose father most movingly spoke of his wish to forgive those responsible. The difficult task of the criminal justice system is, on behalf of society—as the hon. Gentleman pointed out—to mediate all the conflicting emotions and to provide a structure that enables people to feel that justice has been done, but to do so having regard to all the circumstances. 
 The reason why the amendment would not work was eloquently set out by the hon. Member for Beaconsfield. I point out in passing that the amendment is defective, because the Court of Appeal has no jurisdiction over sentences passed in the magistrates court, but I understand the principle and intention. The role of the Court of Appeal in relation to decisions taken in the Crown court is to provide a safeguard. It cuts both ways, for reasons that the hon. Member for Beaconsfield explained very clearly. A young man came to my surgery on Saturday to report 
 that his sentence had been cut, and he had been released from a young offenders institution because the judge thought that the original sentence was far in excess of what was appropriate for the offence. I can only concur with the hon. Member for Beaconsfield that it would not be appropriate to fetter the discretion of the Court of Appeal in such cases, because in the end its job is to act as a safeguard and a long stop when incorrect sentences have been passed. What I have said is not intended to undermine the argument of the hon. Member for Witney on behalf of those who feel that the system has not met their needs. 
 In a previous debate we discussed the extent to which sentencing can reflect local circumstances, and I think that it was the hon. Member for Woking who originally raised the point about preponderances of particular types of offence in different localities. We came to recognise that the framework would not prevent that approach, because the desire to crack down on a particular difficulty in any area is an important consideration. I am sure that the Committee is grateful to the hon. Member for Witney for giving us an opportunity to debate the issues in considering his amendment.

David Cameron: I have enjoyed listening to the Minister's response and the remarks of my hon. Friend the Member for Beaconsfield. I accept that there are difficulties in trying to pass into law something that so drastically fetters the ability of the Court of Appeal to reduce sentences. However, I still believe that what I said about the importance of local justice and about respecting the decisions of local sentencers is vital. I hope that we shall, as we proceed with consideration of the Bill, be able to deal with those matters again.
 I make a plea to the Minister for more accurate figures showing the sentences that are given and the cuts that are made to sentences as a result of appeals. We should know what is happening and be able to ascertain, offence by offence, what sentences the Court of Appeal cuts. It is essential that after the Bill becomes law we should have proper research and figures on the work of the sentencing council, with a view to establishing proper tariffs for offences such as the dangerous driving offences that we have been discussing. It is essential to get the sentence right first time. If we can do that, Mrs. Smith and many people like her will not experience the terrible disappointment of having what they thought was justice snatched away from them, not once but twice. On the basis that that will happen, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I have no particular objection to the clause in principle, as we should consider the possibility of changing the upper limits of the jurisdiction of magistrates courts, but it allows for no parliamentary input into such proceedings. I would
 much rather see that possibility, as it is a legitimate matter for Parliament to consider. The absence of such a possibility is a serious failure in the clause, and I look forward to hearing the Minister's views, as I am sure that he would agree with us. He has stressed the importance of the changes that are taking place and being debated extensively in the Committee, yet we are countenancing the possibility of further changes without the same intense scrutiny.

Simon Hughes: I join the plea for information on which we can legislate and on which the public can know what is going on. Will the Minister discuss with his colleagues how to deliver measures from which all of us will benefit? It is still extraordinarily difficult at local level to get consistent and comparable statistics. I welcome the Government's decision to bring together the crime figures quarterly, and I welcome the interviews by the British crime survey and the recording of offences. However, I still struggle, not through their ill will or mischief or desire for secrecy, to get through to a borough command unit, which is one of the bits of the Met that looks after my borough. I still struggle to get an answer from officers to a request for comparable figures for this year and last year and for this quarter and last quarter to compare my borough with its two neighbours. I would like figures not just on crimes committed, people arrested and crimes cleared up, but on the subject that the hon. Member for Witney referred to: what happens next?
 The police will often say that they do not know what happened at the end of a case. Some witnesses do not know what happened. I remember once giving evidence at an identity parade on the other side of London. Mercifully, I was led to believe that the person whom I identified was the person the police thought he was. That was all very convenient, although I was slightly nervous at the time. However, I never heard any more about what happened in the case—whether the person was taken to court or convicted. Given that that person appeared on the estate behind my house, I had some interest in knowing whether they were going to break into other vehicles outside my house to steal stuff from them. 
 If I may introduce a small interlude: the right hon. Member for West Dorset (Mr. Letwin) and others of us who live in south London—and the Foreign Secretary—share an experience. Occasionally, in south London we are driven to take, at least partly, the law into our own hands. That may not be a commendable characteristic. On one of the two occasions when I ''took the law into my own hands'', the police appeared; they seemed to be slightly surprised to find a Member of Parliament rolling around on the ground trying to hold down somebody who was nicking some tools out of a van. They were rather more surprised when a pub spilled out in a violent incident and there was a running battle on the street outside my house during which I was seeking to protect the dad of a friend of mine from being beaten over the head. Everybody else appeared to have lost their shirt and to be covered in blood; I had lost half my shirt and was covered in blood as well.

Mark Francois: I wish to repay an earlier compliment from the hon. Gentleman by saying that as a Member of Parliament from Essex, I am disturbed to hear that things are quite so grim in his part of the world.

Simon Hughes: Sometimes we try to export our difficulties further east.
 The public need to know what happens in the courts and what sentences are given, what are the outcomes of what happens in the probation service and, if there is a custodial institution in a borough, what happens there. I know that the Government have it in mind to make those responsible for the criminal justice system more accountable, but may I suggest something that would transform people's understanding of what is going on? Every few months, the borough or district police chief, the person in charge of the probation service, the person in charge of the court service and, if there is a custodial institution, the person in charge of that, should appear with the leader of the council to answer the public's questions in a way that everybody can understand. They could explain whether things were getting better or worse, whether punishments were fitting crimes, whether more or fewer people were being caught and whether the system was more or less efficient. People should have that information. 
 I am instinctively unhappy about the clause. We have accepted the doubling of the power of magistrates to sentence—the biggest change in their sentencing power for years. Now we are being asked to contemplate that the Secretary of State, by order alone, should be allowed to add a further 50 per cent., with none of the debate that that would merit and no chance to explore the implications in terms of sentencing policy, actual sentences or knock-on effects. The review of the criminal justice system, which I welcome, was meant to enable us to consider the structure of the courts and sentencing policy, and to ensure that offences are tried in the appropriate places. The Home Secretary keeps on saying that we should have a settled criminal justice system so that we do not have to keep reviewing it. 
 I am unhappy about the proposal that the Secretary of State, after only a few months—or a new Secretary of State soon after being appointed—should be able to come to both Houses of Parliament and propose to increase magistrates' powers with no explanation of how it would affect custody plus rules, no natural implication that it would make custody plus run up to 18 months or 18 months minus a week, no connection between the two or learning from experience and no opportunity for colleagues in both Houses to have the debate to which they are properly entitled. A few people would be able to speak—three Front Benchers, the Chairman of the Select Committee and a couple of others—and that would be the end of it in the Commons. In the Lords, there would be a chance for one round of discussion and no amendment or alteration. 
 Those of us who signed up to the 12-month sentencing power did so on the understanding that it was part of a settled, considered, proposal. We would be more comfortable if it were 51 weeks, for the reasons that we argued. However, I urge the Minister 
 to consider that the clause is inappropriate. In five years' time we are bound to have, or have had, another criminal justice Bill. I predict that, in the course of the Minister's career in Parliament, and in that of everybody in this Room, there will be another piece of Home Office legislation that will give us the opportunity to amend sentencing. I am prepared to take a significant wager on that.

Humfrey Malins: So am I.

Simon Hughes: The hon. Gentleman, who has been in this place longer than I have, knows the track record in that area. There is no risk that the proposition cannot be brought back again, nor that there cannot be a new proposal. However, it ought to be made on the basis of evidence, in the light of experience—not here, where we have not even considered the effect of phase 1, which is what the major part of the Bill is. I ask the Minister to accept that it is a proposal too far.

Dominic Grieve: I was about to say that not only do we not know the effect of phase 1, we do not even know when we will know it, because of the absence of the linkage between custody plus and the changes in the sentencing powers.

Simon Hughes: Neither do we know the timing of the obvious thing that was intended to link with phase 1: custody plus. The Minister has told us that he does not know. He is the Minister, and if he does not know, the rest of us cannot know. I hope that he accepts the force of the argument. We are generally resistant to granting Home Secretaries ''by order'' powers. We can sometimes be persuaded that they are a good idea, but this is not a good idea and we will resist it.

Hilary Benn: I concur with the point about the need for more information at local level. The questions that hon. Members have asked bring to public light the information that is available, but we need to improve on that. The hon. Member for Southwark, North and Bermondsey suggested that commanders of the BCU should appear before constituents to answer questions about trends. That certainly happens in my constituency in several community forums, and I am sure that it is the practice around the country. I see that my hon. and learned Friend the Member for Redcar (Vera Baird) is nodding. It is certainly good practice. I was interested by the hon. Gentleman's description of his own have-a-go experience. If that is what he can do on his own, heaven knows what he could achieve were he to combine with the right hon. Member for West Dorset and my right hon. Friend the Foreign Secretary. I would not mess about with the three of them if they were in the vicinity at the same time.
 Turning to the substance of the clause, the procedure—affirmative resolution—that would allow for the extension of sentencing powers is provided for in clause 265(5)(a). Clearly, the Government will want to reflect on the outcome of the operation of the 12-month sentencing power. I can reassure the hon. Gentleman that any further increase would not affect the structure of custody plus.

Dominic Grieve: Just looking at what we have been doing in Committee today and what took place on Second Reading, I am sure that the Minister would
 agree that what we have achieved is very different from what could be achieved in a debate on an affirmative resolution. Does that not highlight why the affirmative resolution procedure is unsatisfactory? A change of such magnitude would have to be made on the basis of carefully considered debate about its impact.

Hilary Benn: I agree with the hon. Gentleman's second proposition that the powers provided for in clause 139 would have to be exercised only after extremely careful consideration. I do not accept his first point that the procedure is defective, but I can reassure him that any further increases would have to be carefully considered and weighed in the light of the evidence and of experience of the operation of the increased sentencing powers provided for in the Bill. I am sure that we shall return to that matter, should my right hon. Friend the Home Secretary decide to exercise the permissive power under affirmative order to increase sentencing powers.

Dominic Grieve: I want to come back on that point. I appreciate the Minister's points, but I still think that he underestimates the importance of any decision further to increase magistrates' sentencing powers. After all, their current sentencing powers have not been tinkered around with lightly or without a great deal of debate. Many issues surrounding the limitations on their powers have had to be considered. It is also necessary to consider whether any changes would undermine the system of Crown court trial, although I have been reassured on that point, and whether they would be desirable for the administration of justice. Could the lay magistracy handle it? Is this the thin end of the wedge, leading to the introduction of differential sentencing powers for lay and stipendiary magistrates without any review of the totality of sentences?
 A host of issues arise that—I say this frankly to the Minister—require scrutiny through primary legislation. Given the spirit of co-operation that the Committee has enjoyed, he will be aware that such change would require only a one-clause Bill. Second Reading would last only a short time, and the Committee proceedings would probably last one day, or two at most. The usual mechanism for scrutiny would also be available to those in the other place who wanted to provide some input. Dealing with such a Bill would not be an onerous task and would not take up too much time, but Parliament could do its job. 
 The issues could all too easily be bypassed if we simply stick to the affirmative resolution procedure. Let us suppose for a moment that the implementation of magistrates' greater sentencing powers, which we and the Minister welcome, does not proceed according to plan. Let us suppose also that the Treasury puts pressure on a future Home Secretary, saying that serious cost savings could be made by increasing the power further. In those circumstances, there will be irresistible pressure to say, ''All we have to do is pass an affirmative order. It will be easy enough to whip the House and the Committee through.'' Allowing changes of such magnitude to be dealt with under 
 the affirmative resolution procedure will not do justice to those who will be affected by them or to Parliament's role. 
 The Committee has enjoyed a period of great co-operation, so it is with reluctance that I say that we must part company from the Minister and vote against the clause. 
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 11, Noes 8.

Question accordingly agreed to. 
 Clause 139 ordered to stand part of the Bill.

Clause 140 - Pre-sentence reports and other requirements

Question proposed, That the clause stand part of the Bill.

David Heath: I want to take up a point touched on earlier my hon. Friend the Member for Southwark, North and Bermondsey. I do so on the basis that repetition may at least somewhat reinforce it.
 We come now to pre-sentence reports, and the probation service is crucial in this respect. The Minister was asked earlier about the resources that were available to the service, and he declared that everything was pretty okay because the Government had increased them by 50 per cent. since 1997. I am no expert on the probation service—at least, I have not been since way back, when I was a council leader, and we had yearly reviews of Somerset probation service—but I wonder whether what the Minister suggests is a 50 per cent. increase might in fact be a 50 per cent. increase in central Government funding. There has been a huge change in the service's structure and funding mechanism. Individual services have been amalgamated and are fully funded by the Home Office. There is no longer a local authority component to that, and therefore at least part of the increase might represent a substitution of central Government funding for local government funding, which does not in any way improve the resources available. 
 We ask an awful lot of the probation service and will ask a lot more when custody plus comes in. Whatever is said about the level of funding and the organisational improvements that may or may not be put in place, the service is often stretched beyond endurance. If we want a fast and effective justice system, we should focus on that weak point. Courts are often delayed simply because they do not have 
 access to pre-sentence reports or other requirements that the probation service provides. That is not through any lack of diligence on the part of the service, but simply because of the amount of work that officers have to do. I urge the Minister to take back to his Department the point that unless we fund that essential service properly, we shall continue to have bottlenecks in the administration of justice and shall not see the benefits of some of the changes that he and his colleagues are attempting to introduce.

Hilary Benn: The clause re-enacts existing provisions in the Powers of Criminal Courts (Sentencing) Act 2000 concerning when a pre-sentence should be used.
 I am acutely conscious of the responsibilities placed on the probation service, the demand for its work, and how the nature of its work has changed as some offenders who would previously have been dealt with by fines—we discussed that earlier—have moved up the system to come under its care. In order to address the issue that the hon. Gentleman raised, the probation service encourages courts, where courts think it appropriate, to ask not for a pre-sentence report, which requires a greater amount of work from the probation officer, but for a specific sentence report, which takes less time but can be just as fit for the purpose of assisting the court in reaching a decision about the most appropriate sentence. If one looks at the different probation areas, one will find that in some areas the courts are more willing to ask for a specific sentence report, which is less onerous in terms of time than a pre-sentence report. 
 The hon. Gentleman will also notice when we come on to the next clause but one that there is a Government amendment that seeks to assist that process, by making provision for advice to be offered orally in certain cases. That is in recognition of a wish to provide advice to the court as effectively as possible, to assist it in taking a decision about sentencing. 
 Question put and agreed to. 
 Clause 140 ordered to stand part of the Bill.

Clause 141 - Additional requirements in case of

Dominic Grieve: Is not amendment No. 617 to be called on clause 141?

James Cran: Very sharp indeed, Mr. Grieve.

Dominic Grieve: I beg to move amendment No. 617, in
clause 141, page 79, line 28, leave out subsection (2).
 Subsections (1) and (2) cancel each other out. Subsection (1) says that in the case of a mentally disordered offender 
''the court must obtain . . . a medical report before passing a custodial sentence'',
 but subsection (2) says that the court need not do that if it does not think that it is necessary. One wonders why both those subsections are in the clause at all. 
 As a matter of practice, I find it extraordinary to consider a situation in which a mentally disordered offender is sentenced without a psychiatric report 
 having been obtained. I cannot think of any instance in my time at the Bar in which that has happened. When I read the provisions, I wondered whether there might be cases in which even though a medical report was not being prepared for that hearing, another one was available to the court. However, that already seems to be covered in subsection (1). If the medical report is three weeks to a month old I should have thought that it would be perfectly reasonable for the court to obtain it without commissioning a new one. If that is the anxiety, subsection (2) is unnecessary. On the face of it, I find subsection (2) rather worrying and I should like the Minister to explain it. If it is necessary, I wonder whether there is any reason to keep subsection (1). Read together, they amount to a lack of any requirement for a medical report. I do not think that that is a good idea.

Hilary Benn: The hon. Gentleman has, I confess, raised the same questions about subsections (1) and (2) that I raised when I first read them. I hope that I shall be able to offer him the reassurance that I was offered. He is right. There are circumstances in which a report will already be available. Mental health legislation might be the reason for that, such as when a court has remanded the person to hospital for treatment under section 36 of the Mental Health Act 1983. Alternatively, there might, for example, be enough information in the pre-sentence report or from some other medical source. That aspect of the matter is in part dealt with by the definition of the term ''medical report'' in subsection (6). Some other information, falling outwith the definition in subsection (6)—provided, for example, by a psychologist—might be available, and the court might consider it sufficient to enable it to reach a judgment in dealing with a mentally disordered offender.
 I accept the point that the hon. Gentleman makes, because it is very hard to conceive of circumstances in which the court could proceed without any information in the form of a medical report. However, in that very small number of circumstances in which alternative information was available, and in which it was therefore not necessary for the court to comply with the requirement of subsection (1) that it ''must obtain and consider'' a medical report, it would be a waste of the time and resources of the court, and the medical practitioner concerned, for a further report to be produced and considered. Subsections (1) and (2) together, notwithstanding the first appearance of incompatibility between them, therefore result in the court retaining a discretion not to obtain a report when it did not consider one necessary.

David Heath: I wanted to hear the Minister's explanation before commenting. I should have subscribed to the amendment, but for some reason I overlooked it and I apologise to the hon. Member for Beaconsfield for that, because I agree with it.
 Having listened to the Minister I am still not entirely satisfied. Let us consider the question of the court satisfying itself that the medical report available to it, in whatever form, conforms to subsection (6); that excludes anything that could not be construed as a medical report, and it is the first requirement. I do not 
 understand how a court could satisfy itself that it had met that requirement, yet not be satisfied that it had complied with subsection (1), which simply provides that the court ''must obtain and consider'' a report. The court obviously would have obtained the report, and considered it, in order to meet the requirements of subsection (6). 
 To say that subsection (2) is otiose would be wrong: it is perverse, on any normal reading. The Minister has clearly satisfied himself that that is not the case, on the basis of the advice that he has been given, but he must be fairly easily satisfied.

Hilary Benn: That may or may not be the case, but it is for others to judge. It may help the hon. Gentleman if I explain that one other item of information that satisfied me on this matter was the fact that this is a re-enactment of section 82 of the Powers of Criminal Courts (Sentencing) Act 2000.

David Heath: In that case, if the original enactment was so deficient as to bring in this perversity, this is a splendid opportunity for us to act as a revising Chamber. I see no reason to maintain subsection (2) if it serves no useful purpose. I do not understand how, under any normal construction of the words, subsection (2) serves a useful purpose, but I shall be interested to know the opinion of hon. Member for Beaconsfield.

Dominic Grieve: I am not surprised to hear that the provision is derived from some earlier piece of legislation. I seem to spend my time in Committee—not only in this Committee but when I was in Committee on the Proceeds of Crime Bill—discovering that all the matters to which I objected most originated in the 1980s and 1990s.
 Bad drafting is obviously a perennial problem. Drafting tends to replicate itself because it is an incremental process. I shall not take great issue on this, but I do feel that to include subsection (2) is a bit barmy. The Minister might wish to ask whether it might not be straightened out a bit. Quite apart from anything else, if he is really trying to say that there are circumstances in which a medical report may not be necessary, that could all be done in one subsection. The two subsections do not need to be mutually contradictory, as that, on the face of it, is an absurdity. Will he ask his officials to rectify whatever failure may have taken place in the past, so that people who read the 2000 Act and this Bill do not think that the law is an ass? That is what it looks like when one reads subsections (1) and (2). 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 141 ordered to stand part of the Bill.

Clause 142 - Meaning of ''pre-sentence report''

Hilary Benn: I beg to move amendment No. 543, in
clause 142, page 80, line 8, leave out 'in writing'.

James Cran: With this it will be convenient to discuss Government amendment No. 544.

Hilary Benn: Amendment No. 543 will make a small amendment to the definition of a pre-sentence report in the clause. It will offer greater flexibility for future developments in the way in which pre-sentence reports may be presented. The senior judiciary suggested the change during the consultation process.
 In certain circumstances, sentencers would be prepared to receive a report orally, and the probation service advises that the development of the offender assessment system may influence the way in which reports are presented in future. 
 Amendment No. 544 is consequential on that change and simply makes clear that the provisions of clause 143, which concern the disclosure of pre-sentence reports, would not apply to any pre-sentence report given orally in open court. 
 Amendment agreed to.

Graham Allen: I beg to move amendment No. 494, in
clause 142, page 80, line 15, leave out 'an officer' and insert 'a Probation Officer'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 495, in 
clause 142, page 80, line 17, leave out 'an officer' and insert 'a Probation Officer'.
 No. 498, in 
clause 177, page 99, line 19, leave out 'an officer' and insert 'a Probation Officer'.
 No. 499, in 
clause 177, page 99, line 23, leave out 'an officer' and insert 'a Probation Officer'.

Graham Allen: The Minister should be able to deal with the amendments quickly by reassuring us that fully qualified probation officers will be compiling these essential and complex reports. It is an important issue, not least for probation service officers. They need reassurance that their professional skills are not being undermined and undervalued by the growing use of less qualified and less experienced junior staff. I am sure that a few words from the Minister will totally put them at their ease.

Hilary Benn: I hope that I can offer the Committee reassurance, but I am not entirely sure that that reassurance will be in the direction in which my hon. Friend was looking. There has been a significant change over the years in the way in which the probation service has been organised. There has been a growth in the use of probation service officers to support trained probation officers in their work. That means that probation officers no longer have sole responsibility for working with offenders. The role of probation service officers varies widely; it includes qualified psychologists and people running accredited offender behaviour programmes. Similarly, they are able to receive training in producing reports. The Criminal Justice and Court Services Act 2000 acknowledges and recognises those changes and has moved away from prescribing certain functions to specific officers.

David Cameron: Will the Minister remind me whether all probation officers have to have a degree in social work, and let us know whether that applies also to probation service officers—a term that I am not wholly familiar with—and whether the only people who can write pre-sentence reports are those with such qualifications? Does he plan to broaden the probation service, and to bring in people who might have served in the police or the armed forces? They should not have to go through university and take a degree in social work in order to work with offenders.

Hilary Benn: In order to answer clearly, and in order to avoid all doubt, I shall write to the hon. Gentleman on the nature of qualifications, if he will allow me, because things have changed. However, I agree with the general thrust of his question, which was that the probation service should reflect a wide range of backgrounds. Indeed, I visited a probation hostel on Friday afternoon where the deputy in charge had been in the forces—the Royal Air Force, I think—and had decided that he wanted to go into that area of work.
 The thrust of the changes that I have described in answering the point raised by my hon. Friend the Member for Nottingham, North (Mr. Allen) has been to broaden the range of people able work in the probation service, and to provide greater support to fully trained probation officers in the work that they do. That process has taken place in several professions. In teaching, for instance, as well as teachers we now have teaching assistants; and in the national health service, nurses will be able to prescribe and to give injections. Those wholly sensible changes are all in the interests of the institutions involved.

John Mann: In the spirit of my hon. Friend's response, will he say whether, for drug treatment and testing orders given as community sentences, the medical profession ought to make the reports rather than probation officers working as psychologists deeming to make medical interpretation on people's conditions?

Hilary Benn: I would like to reflect on the point raised by my hon. Friend. My principal concern is that we should not have in place structures that add delay to the process of providing courts with the pre-sentence reports that they need in order to make appropriate decisions about how which offenders are to be treated.
 It might assist the Committee and my hon. Friend to know that the number of trained probation officers increased from 7,139 in 1998 to 7,506 in 2001; and the number of probation service officers increased from 1,895 in 1996 to 3,566 in 2001. One has only to add those figures together to see how many more staff are available to the probation service as it undertakes the wider and more demanding work that we are now asking of it.

Graham Allen: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause, as amended, stand part of the Bill.

John Mann: I want to raise one issue of concern, but I do not necessarily expect the Minister to give a detailed response now. I note that the drugs service, in its interrelationship with the criminal justice service, is increasingly using the term ''dual diagnosis''. Last week, I visited health and criminal justice professionals in the Netherlands and asked how many cases of dual diagnosis they had encountered. The answer was very few. It is suggested in my locality that the incidence of dual diagnosis is very high, because the term could be used to refer to somebody who is deemed to be a drug addict but who also has a mental health problem. A problem with that is that it allows a psychologist, rather than a medical professional, to make an assessment. The issue is more complex when we consider crack cocaine. No evidence has been published anywhere in the world of a specific medical treatment for a so-called addiction to crack cocaine. The only evidence that exists concerns psychotherapy, and there is dispute about whether that works.
 My reason for homing in on that detail is that some in this country suggest that dual diagnosis is being used as an excuse for excluding the medical profession from making a diagnosis in relation to drug treatment for an offender—most drug addicts are offenders and are likely to fall within our remit at some stage. There is a danger that the probation service will make decisions on treatment within the drug service and might use its doing so for pre-sentence report as a justification for doing so throughout the system. That is one of the fundamental problems in the drugs service—I have described it previously as a probation-led service. 
 Will the Minister reflect on whether dual diagnosis could lead to the medical profession's being automatically excluded, when what might be required is a medical prognosis of what is needed in order for the Government's worthy objectives in terms of community service through drugs treatment to achieve any success?

Hilary Benn: I shall be happy to write to my hon. Friend on that point.
 Question put and agreed to. 
 Clause 142, as amended, ordered to stand part of the Bill.

Clause 143 - Disclosure of pre-sentence reports

Amendment made: No. 544, in 
clause 143, page 80, line 22, at end insert 
 'other than a report given orally in open court'.—[Hilary Benn.]

Dominic Grieve: I beg to move amendment No. 618, in
clause 143, page 80, line 25, leave out paragraph (b).
 Under subsection (2) provision is made that the court must give a copy of the report not only to the offender, his counsel or solicitor but also to the prosecutor—that is to say, the person having conduct of the proceedings in respect of the offence. There might be good reasons for doing that and I hope that we shall hear from the Minister what those are. However, it constitutes a departure from what I 
 understand to be normal practice. In my experience, the prosecutor does not necessarily see a copy of the pre-sentence report, having no role to play in the details of the sentencing apart from outlining, at the invitation of the judge, any points of law in relation to what the tariffs might be. I am aware that there has been a lot of discussion about the matter. The Director of Public Prosecutions recently said that he wanted the role of prosecutors to change so that they became much more proactive in court, moving, as I understood it, towards the American model of making submissions to a court about what the sentence should be. Such a practice may be justified, but it is not at present Government policy to go down that road. 
 Although it seems a small and rather innocuous feature of subsection (2), the provision that the prosecutor must be provided with a copy of the pre-sentence report is not in accordance with past practice. I have known many cases in which the prosecutor has not had a copy of the report. I would like the Minister to explain the purpose of subsection (2)(b). There is an argument that a pre-sentence report may contain inaccuracies—some are based on information supplied by the defendant or his relatives—and that giving it to the prosecution could give them a useful tool to correct such inaccuracies. However, I hope he will give me the reasons why a prosecutor should see a copy of the report.

Graham Allen: Is it also the intention to show the victim a copy of the report?

Humfrey Malins: I wish to reinforce the point made by my hon. Friend the Member for Beaconsfield. Historically, the prosecution have been utterly independent, and it has been a great characteristic of the British system that the prosecutor has no vested interest whatever in the result beyond presenting the facts to the court and permitting it to reach a just verdict. The prosecution has never had a role in sentencing. I understand that in certain foreign jurisdictions the prosecutor will demand that a particular sentence be passed. We have never had that in this country, and in my experience the prosecution have never seen a copy of a pre-sentence report. If in the report a probation officer says that a defendant has shown huge remorse, will the prosecutor be given a copy so that he can challenge it? Does the Minister envisage that by doing that the prosecutor will be able to challenge any submission made by the defence? If so, we are into more protracted proceedings.
 The purpose of the amendment is to probe why this measure is regarded as important and to remind the Minister that, whatever he may say, it is not established practice.

David Heath: Am I incorrect in reading subsection (5)(a) and (b) as suggesting precisely that purpose for the disclosure of the pre-sentence report: that the prosecution can challenge what it may contain?

Humfrey Malins: That is a very good point. I listen very carefully to what the hon. Gentleman says. The Minister may say that since the 2000 Act this has been a relevant issue as well.

Hilary Benn: It may indeed have been.

Humfrey Malins: I can hear the Minister. I realise that he will now remind me that I should have realised that that is in the 2000 Act. Nevertheless, we must be jolly careful before we move into the world of giving the prosecutor more of a role in sentencing than at present, which is in effect none.

David Kidney: I would not like it to be generally believed that prosecutors never play a role in sentencing. There is a very obvious example that I have often experienced: motorists seeking to give special reasons for not being disqualified or having their licences endorsed. They must give evidence, during which prosecutors can cross-examine them. The prosecution play a role, admittedly in limited cases, in sentencing, so the hon. Gentleman must accept that it is not quite true that they never played a role.

Humfrey Malins: The hon. Gentleman is absolutely right. He has hit on a classic case in which the prosecutor does have a role—

Dominic Grieve: Or in a new hearing.

Humfrey Malins: Yes, or in what is called voir dire—I hope that I will not be asked to spell that—which is a trial within a trial. Yes, it does happen. However, the prosecutor in such cases acts quite gently, in a probing, semi-independent fashion. I am not putting this very well. The Committee will understand that I am concerned about moving away from the current system towards one in which the prosecutor has a really proactive role in relation to sentencing based on the contents of a report.

Hilary Benn: The Powers of Criminal Courts (Sentencing) Act 2000 has been a popular text for the afternoon. I refer to it once again, as the hon. Member for Woking anticipated, in order to point out to the Committee that this is a re-enactment of section 156 of that Act, which says that the court shall give a copy of the report to the prosecutor.

Humfrey Malins: Is it in force?

James Cran: Are you giving way, Mr. Benn?

Hilary Benn: No, but my understanding is that it is in force. If that is not the case I shall seek to correct the impression as soon as possible.
Mr. Malins rose—

James Cran: Order. Please. You are like two pouncing panthers. Is the Minister giving way now?

Hilary Benn: Yes, of course.

James Cran: How splendid.

Humfrey Malins: Thank you.
 I have no idea whether it is in force. All I know is that most of the legislation that we have passed in the past two years is not in force and nobody knows when it will be. I should like confirmation that it is in force, when from, and whether it has become established practice, because I do not think that it has.

Hilary Benn: Those are two separate questions. I am assured that it is in force, and I shall ensure that the hon. Gentleman has an answer as to when it came into force. Whether it is established practice is another question, but that is what the statute requires.
 There might be circumstances in which it is appropriate for the prosecution, having received a copy of the pre-sentence report, to make representations. An example was given by my hon. Friend the Member for Stafford (Mr. Kidney) in a helpful intervention. It might protect victims, which my hon. Friend the Member for Nottingham, North asked about, in that an offender might have misled a probation officer and that might have been reflected in the report. Having had a chance to read the report, the prosecution would be able to correct the false impression.

Graham Allen: It will also help the victim, once the accused has been found guilty, to come to terms with the offence and to understand how the criminal justice process has worked when a sentence is finally delivered. At present, much of the distrust of the criminal justice system is due to the fact that victims are totally bewildered as to how a sentence has been arrived at.
Hilary Benn rose—

Vera Baird: I am troubled that the proposal now seems to be to show it to the victim, not to the prosecutor.

Hilary Benn: I was just about to say that my hon. Friend the Member for Nottingham, North is right about the confidence of the victims in the system. Let me reassure my hon. and learned Friend that the clause contains no proposal to show the report to the victim. I would also make it clear to the Committee that there are safeguards in the legislation to ensure that the report is disclosed automatically only to what is described as a prescribed prosecutor. For any other prosecutor—for example, one in a private prosecution—the court will have discretion as to whether to grant disclosure.

Dominic Grieve: I do not think that the Minister gave us the reason—perhaps it can be found in the debates on the 2000 Act—for deciding that the prosecutor should have a copy. That was the main thing that I asked.

Hilary Benn: I am sorry. There are two reasons. One is to make the representations that I have described in cases in which the defendant has misrepresented himself. The second is that the prosecution might want to make representations to the court in order to prevent it from misdirecting itself in sentencing matters. For example, they might draw to the attention of the court any relevant case or other authorities.

Graham Allen: What was the reason why it could not be shown to the victim?

Hilary Benn: I think that the answer is that, while I accept my hon. Friend's argument about the system needing to be open to the victim, it would contain material pertaining to the offender and his or her background and family circumstances that it would not be appropriate to show to the victim.

Dominic Grieve: I am grateful to the Minister. It may assist the hon. Member for Nottingham, North, if I add that good sentencing reports are heavily dependent on the co-operation of the offender in their compilation. If the report could be shown to the victim or a third party, or even be made public, it would clearly make that co-operation more difficult to achieve.
 I was unaware that the provision was in force, but I have not represented live defendants about to be sentenced—rather than corporate clients—since 2000. I am clearly not up to speed on the latest procedures. However, as long as it is confined to the two areas outlined by the Minister, I see no need to press the amendment to a Division.

Graham Allen: I am grateful to the hon. Gentleman and the Minister for explaining why a victim should not see the pre-sentence report, but that puts the onus on the magistrates or the judge to explain their sentence fully, so that the victim can come to terms with it. There is no excuse for saying at that point that confidences should not be broken or personal data revealed; however, a full explanation will help the victim come to the terms with the offence and the sentence.

Dominic Grieve: The hon. Gentleman raises a good point, and it is certainly desirable that there should be as much transparency and openness as possible. However, he will understand that some cases can cause considerable difficulties. For instance, a letter might be given to the judge, who is about to pass sentence, giving details of the health of the defendant's wife—a classic example would be that she is dying of cancer and has only a few weeks to life. For reasons of basic confidentiality, which we exercise in our daily lives, judges are reluctant to do more than allude to such matters and will not go into chapter and verse. That may well be one of the reasons why people get the wrong impression.
 It is desirable that the judiciary should ensure that there is as much transparency as possible, but 100 per cent. transparency is sometimes simply not feasible. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 650, in
clause 143, page 80, line 27, leave out subsection (3).

James Cran: With this it will be convenient to discuss the following amendments:
 No. 619, in 
clause 143, page 80, line 27, leave out '17' and insert '18'.
 No. 620, in 
clause 143, page 80, line 28, leave out from 'need' to end of line 29 and insert 
 'must be given to him and his parent or guardian or supporting relative if present in court.'.
 No. 651, in 
clause 144, page 81, line 6, leave out subsection (3).
 No. 621, in 
clause 144, page 81, line 6, leave out '17' and insert '18'.
 No. 622, in 
clause 144, page 81, line 7, leave out from 'need' to end of line 8 and insert 
 'must be given to him and his parent or guardian or supporting relative if present in court.'.

David Heath: I shall be as brief as I can, consistent with the material that I need to cover. I am acting as a voice from the Joint Committee on Human Rights. We are debating an exception to the right of a defendant normally to receive a report. The exception applies to those under the age of 17 who are not represented by counsel or a solicitor. The Human Rights Committee report on 31 January drew attention to three concerns about the provision.
 The Committee was concerned that there might be a violation of three specific rights. The first is the right of an offender to a fair hearing under article 6.1 of the European convention on human rights and under the Human Rights Act 1998, on the ground that the right to a fair trial does not end on conviction but extends to sentencing. Secondly, it went on to consider the right of child offenders to express their views freely in all matters under articles 12.1 and 12.2 of the United Nations convention on the rights of the child, and particularly to have the opportunity to be heard in any judicial or administrative proceedings affecting them either directly or through a representative. 
 The third right was the right of the offender as a person to respect for his private life under article 8 of the ECHR and under the Human Rights Act. The circumstances that we had in mind were those in which a child is no longer in the care of a parent or guardian, and does not wish that parent or guardian to see the reports or make representations to the court, because the relationship between the two has broken down. 
 Ministers have already considered those points that the Joint Committee made, and have said that there might be a case for reducing the age from 17 to 14. I agree with that. There was an indication that the Government might table amendments to the Bill to bring that into effect. We have not yet seen such amendments, so perhaps the Minister can tell us that they will be introduced later. That would bring into line a view of an age at which juveniles can take their own decisions on matters on which such a determination has been made. 
 The Joint Committee welcomed that proposed change and said that it would substantially alleviate its concerns in relation to article 8 of the ECHR. On the basis of that provision, it went on to accept that the interests and rights of a child under 14 might be properly balanced with the responsibilities of parents for their children's welfare. 
 The Joint Committee went on to say that under article 12 of the convention on the rights of the child it would be satisfied as long as there were arrangements in place for readily available independent legal representation. However, it was concerned—the concern is extant—about matters relating to article 6 of the ECHR. To give copies of a report to a parent who might be estranged from the child, or unable or 
 unwilling to give voice to the child's concerns, would be to deprive that child of their rights. Under such circumstances, in which a child is not properly represented and the report is not be presented—quite properly, under the current provisions of the clause—there would be a lacuna in the rights of that child. That would be open to challenge and might prejudice future proceedings, quite apart from the intrinsic rights of the child in question. 
 The amendment would eliminate the offending subsection. It is a means of asking the Minister to address those proper concerns. I do not particularly want to remove the subsection altogether, but the Joint Committee—an authoritative source—has expressed those concerns, to which there have not yet been answers. I should like the Minister to address those issues and perhaps satisfy the Committee.

Humfrey Malins: I shall speak briefly to amendments Nos. 619, 620 and 621. Subsection (3) refers to an offender aged under 17—the amendments would change that to 18—and describes such a defendant as
''not represented by counsel or a solicitor'',
 whereas in truth a counsel or solicitor invariably represents those under 17 or 18. Very few ever represent themselves. The court always appoints somebody to represent them, so I do not think that the provisions will apply very often. I see no reason why 18 should not be substituted for 17. If it is not, we would be dealing with an offender aged 17—very young indeed. Why can the provisions not say ''under 18''? What is the magic in ''under 17''? 
 Under subsection (3), the report 
''need not be given to him but must be given to his parent or guardian if present in court.''
 I seek to widen that on the grounds that scenarios might occasionally arise in which somebody is not represented by counsel or a solicitor but may have a supporting relative present. One often asks a defendant, ''Who is with you?'' and the answer is that it is his brother. The brother stands up and says, ''I'm looking after him—he's my brother.'' The same goes for grandmothers and aunts, and the term ''cousin'' is often used in a wider sense than the strict one in which we understand it. As such relatives frequently turn up in support of defendants, are they included in the definition of guardian? If they are, fine. If not, should the clause not be widened in order to permit a copy of the report to be given to them? To all intents and purposes they might have the daily responsibility for the defendant even though not a parent or, unless we widen the definition, a guardian.

Dominic Grieve: The only possible justification for withholding a report, as provided in subsection (3), is for the good of the individual. It is the old question of not telling children all the details about themselves. I can think of no other logical reason for doing it. If that is the case, the first question that springs to mind is why 17? The age of majority is 18; should not that be the limit? Or, picking up the point of the hon. Member for Somerton and Frome (Mr. Heath), why 17 at all? It is totally undesirable that there should ever be a circumstance in which, as a result of the rule, a report is not shown to somebody representing and acting on
 behalf of that defendant. If that were to happen, I am sure that the Human Rights Act would be infringed.
 I cannot think of any circumstances in which a 16-year-old appears in court unrepresented or without the presence of his parents or guardian. Perhaps such incidents do occur; I do not normally practise in such courts and I should be concerned if that were the case. It might be difficult for a 14-year-old to absorb the contents of a report, especially if, for instance, it touched on matters concerning his health. We need some reassurance about where the measure comes from and what its purpose is. Otherwise, it provides a loophole through which the whole system could be shown to be wanting. I hope that the Minister can help us.

Hilary Benn: This has been a useful debate, for reasons that I shall explain. I confirm what the hon. Member for Somerton and Frome said: our attention was first drawn to the provisions—which, in essence, replicate clauses 156 and 157 of the Powers of Criminal Courts (Sentencing) Act 2000—by the Joint Committee on Human Rights. It wrote to the Home Office suggesting that the right of the parent to see the child's pre-sentence report might breach a child's right to privacy under article 8 of the European convention on human rights. We said that we would change the age of a child whose parent was entitled to see a report to under 14 rather than under 17. We thought that that would strike a balance between the child's right to privacy and the proper exercise of parental rights. However, the various amendments have caused us to pause and to wish to think further about the matter. We want to strike the right balance. I am genuinely grateful, for that reason, to hon. Members for having tabled the amendments that gave rise to such a useful conversation.
 We should like to return to two issues on Report. The first is that, in principle, a pre-sentence report and other court reports should be made available to both parents or guardians and children, regardless of whether the child is legally represented. I am in favour of open disclosure. We shall consider the point that the hon. Member for Woking raised about the definition of guardian. I think that it means legal guardian, but he raised an important issue. 
 Secondly, the courts should retain a discretion not to disclose information in reports to either party where that is in the best interests of the child. The reason in relation to the child was given by the hon. Member for Beaconsfield. In relation to the parents, the child may have revealed something in the conversation about what is happening at home, and it may not be in the child's interests for that to be disclosed. 
 Under rule 10(3) of The Magistrates' Courts (Children and Young Persons) Rules 1992, young people already have access to reports in the majority of the cases. The report must be disclosed to the child unless the courts direct that that would be impractical because of his or her age and understanding, or undesirable because he or she might suffer serious harm. Moreover, as a matter of good practice, the Youth Justice Board national standards state that a PSR must be made available in writing, and a copy must be provided to the young person and his parent or carer. If appropriate, child protection implications, the court, the Crown Prosecution Service and the defence must be considered. I am also aware of what the Joint Committee on Human Rights has said on article 6. 
 We would like to consider all those issues. We did not feel that the amendments dealt with them. We shall reflect on the issues that have been raised in this helpful discussion and return to them on Report. In the meantime, I request that the amendment be withdrawn.

David Heath: I am most grateful to the Minister for what he has said. On the undertaking that he will look carefully at the clause and that we shall be able to return to it on Report, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 143, as amended, ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at four minutes to Five o'clock till Thursday 6 February at ten minutes past Nine o'clock.